Politics & Government

In the courtroom, timing can be everything

WASHINGTON — Sometimes the courthouse clock can mean the difference between victory and defeat.

Soon, the Supreme Court will decide a crucial private property rights case that turns on timing. Joshua Acevedo, though, already has learned about timing the hard way after he was jammed by an unforgiving court deadline. Together, the cases show that timing sometimes is everything in the courtroom.

In June 2004, Joshua fell violently ill after he received a required vaccination. The 1-year-old had a high fever, his parents said. He began shaking. He drooled, and his eyes wandered. Doctors medicated the Elizabeth, N.J., resident to control his seizures.

Joshua's parents filed a claim for damages under a federal vaccine injury program, but under federal law, cases involving faulty vaccines must be filed within 36 months of the alleged injury.

In Joshua's case, that statute of limitation expired on June 28, 2007. On June 25, his lawyer, Mindy Michaels Roth, paid Federal Express to deliver Joshua's petition overnight to the claims court.

Federal Express lost the package.

Roth then sent a second copy of Joshua's petition. It was supposed to arrive on July 2, but Federal Express delivered it on July 3. The company found the original package and delivered it on July 13.

It was too late. On Nov. 28, U.S. Court of Federal Claims Judge Charles F. Lettow declared that the court's "inflexible" rules don't permit deadline exceptions. "This result is draconian but compelled by law," he said.

"It was totally out of our control," Roth said. "Under any other circumstance, the government would have settled the case with me."

Lettow reasoned that the 36-month deadline is part of a reasonable tradeoff. Time limits help protect governments that have waived their traditional sovereign immunity, as they have with the vaccine claims.

Congress created the federal vaccine compensation program, funded by industry fees, in 1986. It's supposed to help families pay for therapy, medical care and other support for individuals who attribute injuries to designated vaccines while avoiding endless litigation.

Federal Express couldn't be reached for comment. Joshua is 4 now, and he apparently has regained his health, but Roth said the family still deserves compensation for the medical care he required, and she said she'd appeal.

"I'm not done yet," she said.

So she'll be watching closely as the Supreme Court wrestles with another time-related case next year.

The high court is considering a Michigan company's claim that its property was taken by a fence that federal regulators installed.

The John R. Sand & Gravel Co. argues that its Michigan property was taken in 1998, when the fence was moved and additional property-use limits were imposed. The Bush administration maintains that any taking occurred when the fence was first installed in 1994.

The gravel company sued in 2002, demanding compensation. The administration's defense cites the clock: Most lawsuits must be filed within six years of the alleged harm, and the administration argues that the time expired in 2000.

"Every claim, except those especially enumerated, is forever barred unless asserted within six years from the time it first accrued," Solicitor General Paul Clement argued for the government, emphasizing the word "every."

The Sacramento, Calif.-based Pacific Legal Foundation, supporting the gravel company, argues that the traditional six-year statute of limitation shouldn't apply in cases that involve private property.

Because it deals with some related timing issues, Roth had hoped that the pending John R. Sand & Gravel case would help her client.

But the claims court declined to wait for the Supreme Court to rule in the gravel company case, and Judge Lettow also declined to apply equitable tolling, a legal doctrine that allows extending the statute of limitations.

"There is no possibility of equitable tolling under the vaccine act even in the circumstances of this case, where counsel took reasonable steps to file its obligation to file in time," Lettow ruled.

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